n Bush v. Gore, candidate Bush challenged the December 8, 2000 decision of the Florida Supreme Court on two constitutional grounds. He argued that the decision of the Florida Supreme Court allowing a recount of disputed ballots violated both Article II, Section 1 and the Equal Protection Clause of the Fourteenth Amendment of the US Constitution.

Although I will devote most of my attention to the Equal Protection issue, the Article II issue merits at least passing notice, for although only three Justices found any merit in this argument, it has received some attention recently from conservative legal commentators in their efforts to rescue the Supreme Court's decision.

Article II, Section 1 provides that, in presidential elections, "each State shall appoint, in such manner as the legislature thereof may direct," the electors to which the State is entitled.

In his concurring opinion in Bush v. Gore, Chief Justice Rehnquist, joined only by Justices Scalia and Thomas, argued that the Florida Supreme Court decision violated this provision. To make this argument, Chief Justice Rehnquist emphasized the word "legislature" in Article II, Section 1, and maintained that in its interpretation of the Florida election code the Florida Court had, in effect, inappropriately substituted its judgment for that of the Florida legislature.

As the Justices who rejected this argument made clear, this is, at best, a novel construction of the United States Constitution. This is so for several reasons. First, it places peculiar weight on the word "legislature," as if the framers of the Constitution had actually intended to draw a substantive distinction between the State, which is expressly empowered to "appoint" its electors, and the State's own legislature. This would be like interpreting the word "Congress" in the First Amendment--as in, "Congress shall make no law abridging the freedom of speech or of the press"--to mean that the First Amendment does not apply to the executive and judicial branches of the government, a hyper-literalist interpretation that no court has ever embraced.

Second, the Chief Justice's argument assumes that this is an appropriate matter for federal judicial review. This is hardly obvious. Article II, Section 1 could easily be read as a purely structural provision that should be left, except in the most egregious of circumstances, to the States and to the political branches of government. Indeed, if there was ever a "political thicket" that the federal courts should avoid, it would seem to be a dispute between a state legislature and a state supreme court on a matter of state law concerning a highly-charged political election. And certainly it is ironic that Justices Rehnquist, Scalia and Thomas, of all people, would embrace the Article II argument. As the champions of judicial restraint, strict construction and federalism, their indulgence of this highly intrusive argument in Bush v. Gore was out of character, to say the least.

Third, as even Chief Justice Rehnquist admitted, it is virtually unprecedented for the Supreme Court of the United States to arrogate to itself the authority to overrule a state supreme court on a matter of state law. This is an extraordinary assertion of federal judicial power. As the Justices who rejected the Article II argument made clear, Article II does not grant the Justices of the United States Supreme Court "any special authority to substitute their views for those of the state judiciary on matters of state law."

Finally, and as a majority of the Justices concluded, the Florida Supreme Court's interpretation of Florida law was within the bounds of constitutionally permissible interpretation. As even Chief Justice Rehnquist conceded, the Florida Election Code was not "well-crafted." Indeed, in several respects relevant to this dispute, it was ambiguous, confusing, and self-contradictory, and it was certainly never designed to deal with the complex questions posed by the 2000 presidential election.

In their efforts to make sense of these often puzzling provisions, the Florida Supreme Court invoked several familiar rules of statutory construction. For example: "Where two statutory provisions are in conflict, the specific statute controls the general." "When two statutes are in conflict, the more recently enacted statute controls the older." "A statutory provision will not be construed in such a way that it renders meaningless any other statutory provision." And "related statutory provisions must be read as a cohesive whole." Surely, there is nothing revolutionary here.

Consider, for example, the problem of defining a "legal vote" under Florida law. This is important because the Florida Election Code expressly includes as a ground for "contesting" an election "the rejection of a number of 'legal votes' sufficient to change or place in doubt the result of the election." A key question was thus whether a punch-card ballot containing a hanging or dimpled chad could constitute a "legal vote" for these purposes.

The Florida Supreme Court held that a "legal vote" may include any ballot from which it is reasonably possible to determine the clear intent of the voter, whether or not the chad had been completely punched through--a conclusion, by the way, that is consistent with the law of the clear majority of the States.

In his concurring opinion in the Supreme Court of the United States, however, Chief Justice Rehnquist argued that this interpretation of Florida law was so irrational, and so flagrantly inconsistent with Florida legislation, that it violated Article II. Chief Justice Rehnquist reasoned that because most precincts using punch-card ballots instructed voters to "check your ballot to be sure your voting selections are clearly and cleanly punched," no "reasonable person" could possibly count as a legal vote "those ballots that were not marked in the manner that these instructions . . . specified."

Although this is a perfectly rational interpretation of Florida law, it is hardly compelling. In reaching its contrary conclusion about the definition of a "legal vote," the Florida Court quite reasonably relied upon another provision of the Florida Election Code which expressly provides that "no vote shall be declared invalid if there is a clear indication of the intent of the voter."

Moreover, the Florida Court invoked a long-standing principle of Florida law, derived from the Florida Constitution, which declares the "right of suffrage preeminent." Quoting a 60-year-old Florida precedent, the Florida Court noted that we

must give statutes relating to elections a construction in favor of the citizen's right to vote, and the intention of the voters should prevail when counting ballots. Our election laws are intended to facilitate and safeguard the right of each voter to express his or her will in the context of our representative democracy.

The Florida Supreme Court thus concluded that "the voters here did everything which the Election Code requires when they punched the appropriate chad with the stylus. These voters," the Court said,

should not be disenfranchised where their intent may be ascertained with reasonable certainty simply because the chad they punched did not completely dislodge from the ballot. Such a failure may be attributable to the fault of the election authorities for failing to provide properly perforated paper, or it may be the result of the voter's disability or inadvertence. Whatever the reasons, where the intention of the voter can be fairly and satisfactorily ascertained, that intention should be given effect.

Now, I am not here to argue that the decision of the Florida Supreme Court was necessarily correct in every respect as a matter of state law. To the contrary, it's easy to parse these statutes in many different ways, and even the Florida Supreme Court was divided four-to-three. Moreover, if I were a Justice on the Florida Supreme Court, I might well have disagreed--perhaps even strongly disagreed--with at least some of the Court's conclusions.

But to say that I would have disagreed is quite different from saying that the Florida Supreme Court's conclusions were so irrational or so fundamentally flawed that a Justice of the United States Supreme Court could legitimately sweep them aside, declare them in effect not "law" at all, and substitute his own judgment about the meaning of state law.

In the end, then, I agree with the majority of the Justices of the United States Supreme Court who concluded that the Florida decision was sufficiently "rooted in long-established precedent" and sufficiently "consistent with the relevant statutory provisions" that it did not even raise "a colorable question" under Article II of the federal Constitution.

Arguing equal protection

Let me turn now to the real heart of the case--the Supreme Court's holding that the decision of the Florida Supreme Court violated the Equal Protection Clause of the Fourteenth Amendment. The crux of this holding is captured in the majority's observation that, although the "intent of the voter" standard "is unobjectionable as an abstract proposition," a constitutional problem nonetheless "inheres in the absence of specific standards to ensure its equal application."

The majority were concerned that, in searching for the "intent of the voter," and in giving meaning to ballots with dimpled and hanging chads, "the standards for accepting or rejecting contested ballots might vary not only from county to county but [even] within a single county." The majority therefore concluded that the "recount mechanisms implemented [by] the Florida Supreme Court do not satisfy the minimum requirement for non-arbitrary treatment of voters necessary to secure the fundamental right" to equal protection.

Although this argument was endorsed by seven of the nine Justices--all but Stevens and Ginsburg--it has generally been treated with derision by liberal and conservative commentators alike. As my liberal colleague Cass Sunstein has noted, the Court's Equal Protection conclusion "lacked all support in precedent and history . . . and clearly ignored a host of problems as serious as those it addressed." Not to be outdone, my conservative colleague Richard Epstein has sniped that the Court's equal protection argument is "a confused nonstarter at best, which deserves much of the scorn that has been heaped upon it."

Frankly, I am more sympathetic to the Court's reasoning than most of its critics, but let me begin with the scorn. What do the critics say? First, they point out that this argument is entirely unprecedented and, indeed, comes completely out of the blue. This is essentially true.

Beginning in 1964, in decisions like Harper v. Virginia Board of Elections, which invalidated the poll tax, and Reynolds v. Sims, which invalidated malapportioned legislative districts, the Warren Court first embraced the principle that laws that grant the right to vote on a selective basis must be carefully scrutinized because they affect the very "foundation of our representative government."

Although the question posed in Bush v. Gore was quite different from the ones posed in cases like Harper and Reynolds, which involved laws that clearly discriminated against readily identifiable groups of voters, the principle underlying those early Warren Court decisions could, in my judgment, support the Court's conclusion in Bush v. Gore that, in counting votes, a State must use standards and processes that ensure that ballots are counted in a consistent and equal manner.

However, and here's the rub, it's been some thirty years since the Supreme Court of the United States has actually applied the principles articulated in cases like Harper and Reynolds, and both the Burger and Rehnquist Courts, and most of the Justices who eagerly embraced this argument in Bush v. Gore, have steadfastly rejected this principle for the better part of three decades. This is the sort of constitutional argument that Justices Warren, Brennan and Douglas could heartily endorse, but for Justices like Rehnquist, Scalia and Thomas suddenly to don this mantle seems strange, indeed.

Second, critics of the Court's Equal Protection analysis in Bush have noted the rather peculiar limitations the majority attempted to place on the implications of their own logic. For example, in a curious effort to constrain the reach of their decision, the majority pointedly noted that "our consideration" of the Equal Protection Clause's impact on election processes "is limited to the present circumstances."

Moreover, and more to the point, the majority explicitly declared that "the question before the Court is not whether local entities . . . may develop different systems for implementing elections" within a single State. In other words, although holding that the use of the "intent of the voter" standard to count ballots violates the Equal Protection Clause because that standard can be applied differently in different parts of a State, the majority expressly eschewed saying anything about the much more dramatic Equal Protection problem presented by the Florida election process--the fact that different counties and precincts used very different voting technologies, that those different technologies had very different probabilities of undercounting the votes of individual citizens, and that there was a clear correlation between the use of those technologies that maximized undercounting and the relative poverty of the citizens of a particular county or precinct.

As Professor Pam Karlan of the Stanford Law School has observed: "A court that believes that the real problem in Florida was the disparities in the manual recount standards, rather than the disparities in a voter's overall chance of casting a ballot that is actually counted, has strained at a gnat only to ignore an elephant."

Now, in fairness to the majority, I think there may be at least a partial answer to this criticism. It is a long-standing principle of First Amendment law that the standardless licensing of speech is unconstitutional. A city, for example, may not constitutionally grant a governmental official standardless authority to decide which speakers can and cannot speak in a city park. Rather, to limit the risk of discriminatory application, the city must expressly focus the licensing official's authority on such permissible considerations as time, place and manner, and must expressly prohibit the official's consideration of such impermissible factors as the content of the speech.

One might argue, by analogy, that in counting votes in an election, a State must define with similar clarity the specific factors that may be considered in deciding whether a particular ballot is or is not to be counted, and that the "intent of the voter" standard is simply too vague to be relied upon in the highly charged context of vote-counting. Thus, in order to limit the possible abuse of discretion, the State arguably must specify precisely whether it will or will not count dimpled or hanging chads as "legal votes."

On this view, one might conclude that the "intent of the voter" standard posed a distinct Equal Protection problem that does not necessarily implicate the issue of different voting methods in different parts of the State. But the majority didn't even contemplate such an argument. They thought it sufficient to say, without more, "We go this far, and no farther."

Third, the majority's five-to-four decision not to remand the case to enable Florida to conduct a constitutionally appropriate recount with a more specific definition of "intent of the voter" has been attacked by almost everyone. The majority asserted that because the Florida legislature may have intended to take advantage of the "safe harbor" provision of federal law, which required a selection of electors by December 12--the date of the Supreme Court's decision, there was simply no time left for any further recount.

There is virtually no one who will defend this conclusion as a matter of law. Even as respected a conservative legal scholar as Michael McConnell has strongly chastised the Court on this count, noting that although the Florida legislature could theoretically have adopted such a statute, in fact it never did so.

How, then, can one explain the refusal of these five Justices to remand the case to Florida for a further recount consistent with their interpretation of the Equal Protection Clause? Some of the Court's most fervent apologists have argued that these Justices, in a burst of noble pragmatism, did the nation a service by putting an end to a controversy that was threatening to spin out of control. Frankly, I would have been more impressed with these particular Justices' nobility if the consequence of their decision had been to install as president the Democratic candidate for the job.

But, in the actual circumstances presented, I find this argument wishful, at best. There was, in fact, no political crisis facing the nation. There was no social unrest, no paralysis of government, no lack of discipline in foreign affairs, no instability in the financial markets, no crisis in consumer confidence, no stockpiling of goods. Perhaps there was too much C-SPAN, but that hardly threatens the Republic. Surely, there was no more of a crisis facing the nation during the Bush/Gore post-election dispute than there was during the abortive attempt to impeach the President. But no one called that to a halt to avoid a "crisis."

Would a further recount have been messy? You bet. There were all sorts of things that could have gone wrong after December 12 both in Florida and in Congress, and not many that could have gone right. But was this a constitutionally legitimate reason for the Supreme Court of the United States to halt the recount of legal votes in Florida? No.

The plain and simple fact is that if this matter could not have been finally resolved in Florida prior to the convening of the Electoral College, the appropriate forum for determining the outcome of the presidential election was Congress, the politically accountable branch of government and the branch that is expressly charged both by the Constitution and by federal law with this responsibility. No one has given this authority to the Supreme Court of the United States.

After the Hayes-Tilden election of 1876, the nation enacted legislation to deal with precisely this sort of controversy, and carefully reserved to Congress the responsibility to resolve contested presidential elections. As Senator Sherman noted in introducing this legislation in 1886, Congress expressly contemplated and rejected a role for the Supreme Court in such controversies:

"It has been proposed," Senator Sherman explained, that in the event of a dispute about the legitimacy of Electors,

. . . the matter should be referred to the Supreme Court. But . . . we ought not to mingle our great judicial tribunal with political questions. It would be a very grave fault indeed to refer such questions, in which the people of the country were aroused, and about which their feelings were excited, to this great tribunal, which after all has to sit upon the life and property of all the people of the United States. It would tend to bring that court into public odium . . . .

In Bush v. Gore, the five-member majority ignored not only this wisdom, but the law itself. Their decision to prevent Florida from counting what the Court itself accepted as "legal votes" under state law may have been pragmatic, but it was not lawful.

Politics in black robes?

I'd like to conclude with what, for me, is the most dispiriting facet of this whole sorry episode. I had the great privilege of serving as a law clerk to a Justice of the United States Supreme Court. For more than a decade, I have edited the Supreme Court Review and I co-author the nation's leading constitutional law casebook. I have taught constitutional law for more than a quarter of a century, even while serving as dean and provost.

As a teacher of constitutional law, I am frequently asked by skeptical students: Isn't constitutional law just politics in black robes? Don't the Justices just vote their political preferences? Isn't all this "stuff" about the Constitution merely a charade? I have always rejected this understanding of the Supreme Court and of constitutional law.

The cases presented to the Supreme Court are rarely governed by clear precedent. If the cases were easy, they would not be in the Supreme Court. Moreover, the Court is frequently called upon to give meaning to the highly opened-textured provisions of our Constitution: "Congress shall make no law abridging the freedom of speech." "No State shall deny to any person the equal protection of the laws." "No person shall be deprived of life, liberty or property without due process of law." These terms are not self-defining.

In this context, it is hardly surprising that individual Justices will often decide specific controversies in ways that reflect their personal backgrounds, experiences, values and institutional assumptions. In the absence of controlling precedent and self-defining language, it is inevitable that the Justices will bring such considerations to bear in giving meaning to the fundamental guarantees of our Constitution. How they think about equality, or liberty or federalism or poverty or efficiency will inescapably affect this understanding of these provisions.

This is both inevitable and appropriate, and it is as true for so-called liberal Justices as it is for the conservatives. But what has sustained my faith in the Supreme Court as an institution, and in constitutional law as a fundamental part of our legal and political system, is the fact that, regardless of their partisan affiliations, the Justices historically have strived sincerely and in good conscience to give fair meaning to the guarantees of our Constitution. They do not trade votes, or accept bribes, or allow partisan political considerations to dictate their decisions.

And that brings me back to Bush v. Gore.

The majority's decision in Bush v. Gore that the recount process ordered by the Florida Supreme Court violated the Equal Protection Clause was a highly activist, but plausible interpretation of the Constitution. What was disheartening to me was not the constitutional principle embraced by the majority, but the votes cast by Justices Rehnquist, Scalia and Thomas in support of that decision, votes that were dispositive of the case, and of the presidency of the United States.

No one familiar with the jurisprudence of Justices Rehnquist, Scalia and Thomas could possibly have imagined that they would vote to invalidate the Florida recount process on the basis of their own well-developed and oft-invoked approach to the Equal Protection Clause.

In the decade leading up to Bush v. Gore, Justices Rehnquist, Scalia and Thomas cast approximately 65 votes in non-unanimous Supreme Court decisions interpreting the Equal Protection Clause. Nineteen of those votes were cast in cases involving affirmative action, and I will return to them in a moment. Of the 46 votes that these Justices cast in cases that did not involve affirmative action, Justices Rehnquist, Scalia and Thomas collectively cast only two votes to uphold a claimed violation of the Equal Protection Clause. Thus, these three Justices found a violation of Equal Protection in only 4 percent of these cases.

For the sake of comparison, over this same period, and in these very same cases, the colleagues of Justices Rehnquist, Scalia and Thomas collectively voted 74 percent of the time to uphold the Equal Protection Clause claim. 74 percent versus 4 percent.

Against this background, one must wonder why Justices Rehnquist, Scalia and Thomas suddenly discovered power and beauty in the Equal Protection Clause in Bush v. Gore. Indeed, as a group they cast more votes (three, to be exact) to uphold the Equal Protection Clause claim in Bush v. Gore than they had previously cast in all of the non-affirmative action Equal Protection Clause cases that they had considered in the previous decade.

Of course, those other cases were different, for they involved laws that disadvantaged blacks, women, gays, the disabled and the poor--groups that are surely less deserving of concern under the Equal Protection Clause than the beneficiary of the Court's decision in Bush.

But this is not a fair characterization. After all, I have excluded from the above analysis the votes of Justices Rehnquist, Scalia and Thomas in affirmative action cases. In those cases, these three Justices have consistently demonstrated the same spirit of bold and innovative interpretation of the Equal Protection Clause that they manifested in Bush v. Gore. Indeed, over the past decade, these three Justices have collectively cast 19 votes to hold unconstitutional various forms of affirmative action. This represents 100 percent of their votes in these cases--a perfect record. (Their colleagues, by contrast, have voted only 33 percent of the time to invalidate such programs.)

What does this tell us? It tells us that Justices Rehnquist, Scalia and Thomas have a rather distinctive view of the United States Constitution. Apparently the Equal Protection Clause, which was enacted after the Civil War primarily to protect the rights of newlyfreed slaves, is to be used for two and only two purposes--to invalidate affirmative action and to invalidate the recount process in the 2000 presidential election.

As Professor Robert Post of the Berkeley Law School has observed, "I do not know a single person who believes that if the parties were reversed, if Gore were challenging a recount ordered by a Republican Florida Supreme Court," that Justices Rehnquist, Scalia and Thomas "would have reached for a startling and innovative principle of constitutional law to hand Gore the victory."

You can draw your own conclusions.

ABOUT THE AUTHOR |
Geoffrey R. Stone

Geoffrey R. Stone is the Harry L. Kalven, Jr. Distinguished Service Professor of Law at the University of Chicago. He received his undergraduate degree from the Wharton School of Finance and Commerce of the University of Pennsylvania before attending the University of Chicago Law School, where he served as editor-in-chief of the Law Review.

Following graduation in 1971, Stone served as law clerk to Judge J. Skelly Wright of the U.S. Court of Appeals for the District of Columbia Circuit. He spent the next year as law clerk to Justice William J. Brennan, Jr. of the Supreme Court of the United States. Stone was admitted to the New York Bar in 1972 and has been a member of the faculty at the University of Chicago since 1973. He is currently a member of the National Advisory Council of the American Civil Liberties Union and a member of the Board of Governors of Argonne National Laboratory.

Stone has taught courses in constitutional law, civil procedure, evidence, criminal procedure, contracts, and regulation of the competitive process. He has written a casebook with Cass Sunstein in the area of constitutional law. He has also written numerous articles concerning such matters as the freedom of speech and press, freedom of religion, the constitutionality of police use of secret agents and informants, the privilege against self-incrimination, the Supreme Court, and the FBI. Mr. Stone is the editor, with David Strauss and Dennis Hutchinson, of the Supreme Court Review.

COPYRIGHT | A version of this article was delivered at the Federal Bar Association in Chicago on May 23, 2001. Copyright 2001 The University of Chicago.